Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
The Facebook page for Ionic Balance wristbands included the claim "SCIENTIFICALLY PROVEN". It also featured various testimonials from consumers which included efficacy claims, some of which related to health. For example, "I have been wearing it for a fortnight now and I really do seem to have more energy"; "I bought one for my Mum who has balance problems … all of a sudden she is going out all the time and swinging her arms as she walks! I got one as I was so impressed with her response, went on a driving lesson and the guy said I was more confident and focused!"; "… I have never felt this great for years. Full nights [sic] sleep and more energy"; "… I feel GREAT thanks, am sleeping like baby and getting up in a morning feeling like I have slept, the joints are loads better, I know it is not a cure for my RA but it helps like you would not believe"; and "… had it on for 21 hours now and its [sic] already made a huge difference! Its [sic] just after nine and I got up at 8 after a full 8 hour sleep (with maybe waking twice in night new low record)".
Issue
The complainant challenged whether the following were misleading and could be substantiated:
1. the claim "SCIENTIFICALLY PROVEN"; and
2. the health claims in the quoted testimonials.
Response
1. Ionic Balance said they had conducted a full double-blind placebo crossover human clinical study in November 2012, in which a power calculation was used to ensure the evidence was robust. They said similar studies had been undertaken since by some of their competitors, who were vetted by the Federal Trade Commission (FTC) in the USA. They acknowledged that the Facebook page could be viewed in the UK and said they had therefore removed the claim "SCIENTIFICALLY PROVEN" as a gesture of goodwill.
2. Ionic Balance said they did not actively solicit user-generated testimonials via Facebook; such content was posted entirely voluntarily. They said that as an American company they were governed by the FTC and even if they were to use user-generated content for marketing purposes that was within FTC guidelines. They said only a small minority of their over 52,000 Facebook fans were in the UK and users had to, for example, 'like' the page or make a conscious effort to view its content.
Assessment
1. & 2. Upheld
The ASA acknowledged Ionic Balance's willingness to remove one of the claims. We noted that the Ionic Balance Facebook page targeted UK consumers, for example by giving prices in sterling, and that user-generated content incorporated into such marketing on social media sites under an advertiser's control was subject to the CAP Code.
However, we noted we had not seen evidence to support the claim that the product was "SCIENTIFICALLY PROVEN" or to support the various health claims included in the user-generated testimonials incorporated into Ionic Balance's advertising. In the absence of substantiation, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
3.47
3.47
Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer.
(Endorsements and Testimonials),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation) and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, health and beauty products).
Action
The ad must not appear again in its current form. We told Ionic Balance to ensure they were in a position to substantiate their objective claims in future.
